Controversies regarding separation in the United States
Some,especially certain devout Christians , believe that the United States Supreme Court has made a logical mistake in using the Establishment Clause to separate church and state by force of law.
The Founding Fathers did not prohibit religious references in official contexts. The Declaration of Independence, the founding document of the United States, contains four references to God . While the Declaration is a rebuke to the notion of a Divine Right of Kings , and while it can be argued that references to God were unavoidable because it is responding to a religious concept, its particular wording seemingly goes further than the minimum required for this, expressing implicit faith in God and reliance on God for the founding of the United States.
The Declaration, however, is not a legal document; the Constitution—which is the legal framework of the United States—does not refer to God (other than referring to its passage by the Constitutional Convention as occurring in the "Year of our Lord 1787"). In fact, prior to the addition of the First Amendment or the balance of the Bill of Rights to the Constitution, it contained a clause forbidding any "religious test" for government employees. This has been called the "no religious test" clause , and is found at the end of Article VI, Section 3 (the final clause of the original Constitution save only for the Ratification Clause stating under what conditions the new Constitution would be deemed to be valid and in effect), which reads in part "but no religious test shall ever be required as a qualfication to any office or trust under the United States." This clause has been interpreted to cover both elected officials and appointed ones, career civil servants as well as political appointees.
Religious beliefs or the lack of them have therefore not been permissible tests or qualifications with regard to federal employees since the ratification of the Constitution. Many state constitutions have lacked such protection; some have had opposite provisions, requiring state employees and officials follow such specific doctrines as the acceptance of the Christian verison of the afterlife. ( Tennessee constitution Article IX, Section 2 is one such example.) At one time, such restrictions were allowed under the doctrine of states' rights ; today they are deemed to be in violation of the federal First Amendment as now authoritatively interpreted and hence unconstituional and unenforceable.
While sometimes questioned as possible violations of separation, the appointment of official chaplains for government functions, voluntary prayer meetings at the Department of Justice outside of duty hours, voluntary prayer at meals in U.S. armed forces, inclusion of the (optional) phrase "so help me God" in the oaths for many elected offices, FBI agents, etc., have been held not to violate the First Amendment, since they fall within the realm of free exercise of religion.
Relaxed zoning rules and special parking privileges for churches, the tax-free status of church property, the fact that Christmas is a federal holiday, etc., have also been questioned, but have been considered examples of the governmental prerogative in deciding practical and beneficial arrangements for the society. The annual holiday of Thanksgiving, and the national motto "In God We Trust", are clearly violations if strict separation is implied; but they are not inconsistent with the religiosity expressed in the Declaration of Independence. Once again, however, although the Declaration carries no legal weight, these phrases and actions have been allowed as part of a civil religion, which some interpret to mean that they occur in a context which allows the observer to give them whatever meaning he or she wishes to ascribe to them, or to ascribe to them no meaning whatever.
Most of the relevant decisions (school prayer, pledge, etc.) have been based on the use of coercion by the State to promote religious dogma. Many decisions note that even if the State has no intention to promote one particular religion, in practice the predominant religious make-up of a school's population often makes those of a minority religion feel unwelcome or hated. This means that just because an act with religious connotations is deemed "voluntary" it is not specifically exempted from this doctrine; this is especially true with regard to public schools where the students are by definition young and immature and the expression of dissent can subject a child to ridicule, abuse, and negative peer pressure. Regarding the display of religious symbols on public property during holiday seasons, one exception has been cases in which competing religions and non-religion have equal opportunity, although the non-religious displays are often not guarded from vandalism, etc.
The operation of the American "separation of church and state" highlights the difficulty of enforcing laws in a society that encourages the open expression of conflicting religious beliefs. The issue of prayer in the schools will provide a convenient comparison of the points of view in the American public debate over the separation of church and state.
Generally, a majority of voters in America favors prayer in schools, depending upon how the poll is phrased. But the Supreme Court has interpreted the Establishment Clause as giving minority religions protection against having the majority religion forced on them by the state.
